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I live in ny state can i only collect on the liability insurance that the other driver had when I settle on my case.

Sodus, NY | March 31, 2013 4:24am

I was in a horrific accident where the driver at fault died. I will need back and neck surgery she only had a 100,000 liability coverage. can I only sue up to that amount or can I sue for more?. Comp since I was working at the time, on company time comp has paid for everything. I think I should be able to sue for more but I was only told we can sue for only 100,000

This is a significant injury. If you have not done so already, you should immediately retain an attorney in NY to get maximum value on the claim.

Nothing in this communication should be construed as creating an attorney client relationship. This is for informational purposes only. Attorney will take no action on your behalf unless and until a written retainer agreement is signed. There are strict time deadlines on filing claims and, as such, you are advised to consult with and retain an attorney immediately to file such claims timely or you will lose any right to recovery. Any testimonials or endorsements should not be construed as a guarantee, warranty or prediction of the outcome of your case.

Asker

In New York when you bring a lawsuit you are not allowed to specify the amount sued for in an action arising from a car crash for personal injuries. After the lawsuit is started, defense counsel can ask for you to specify the amount you are claiming as damages. You can choose any amount deemed appropriate. The issue is how do you enforce a judgment, The answer is from the defendant's policy limits unless you pursue the responsible party's personal assets which is not an easy task. In addition, if you have under your own auto policy what is called supplementary uninsured motorist coverage (SUM) you can seek to recover from your own policy, provided your SUM limits exceed the limits of the defendant's policy limits. Suing for any amount is quite different from collecting damages.

While you can "sue" for any amount you wish - the problem comes when you are trying to collect. As mentioned, the papers that start the lawsuit no longer carry a dollar amount and instead only indicate a comment about jurisdiction. In reality those dollar amounts (ie. $1 mil, $5 mil, or whatever number you choose) had very limited bearing on the actual demand in a lawsuit and generally served only to alarm and upset the person being sued. That is part of the reason our legislature did away with the requirement to put a dollar amount in the complaint.

But I digress because that is not your question. You have a right to ask for any dollar amount you please but the reality is that you will only be able to collect up to policy limits of the offending vehicle. You also have a right to pursue the estate of the defendant for an amount over and above the insurance policy limits but that is a very difficult proposition. If the defendant did not have much $ then there is a good chance that there will be no money in the estate. You need to find out more info re: defendant and also confirm that there is no additional covage that may be used in this claim. Usually you can get an affidavit of no excess or additional insurance from the spouse or executor of the estate.

Pursuing a defendant individually is generally not recommended in most cases. The theory is that you will end up spending an inordinate amount of time and money chasing a judgment and there is no guarantee you will ever be able to collect over $100k. This is because in order to get more than the policy you must have a full trial on your case. The only way to properly try a case such as yours is to have the spinal surgeon testify. The cost for that surgeon alone would likely be upwards of $10k, and that would only be a part of the trial costs. And remember, all costs come off the top of a recovery so that would be $10k you are spending with a chance u may not see it again. Not to mention, what if the jury doesn't award you over $100k. Many people feel that $100k is a lot of money. If you have the wrong jury you could always get a verdict of under $100k or even -0- if they don't believe your injuries are serious enough. This is because before ou can recover any money in NYS you must prove that our injuries are "serious" under the INsurance Law. That doesn't sound like a problem here but the chance always exists that a jury could determine otherwise.

Your best option is to make sure there is no additional coverage for the D. Then you should confirm what type of SUM (Supplementary Underinsured Motorist) coverage your employer had on the work vehicle. If you are lucky there will be additional coverage there. If no SUM exists on your work car, perhaps you purchased it with your own car insurance. These are all the avenues your attorney should be looking down to find additional coverage for this accident. If they don't know what SUM is, you have a new problem and should probably find a different lawyer. If they do, they've most likely explored these options and no other coverage exists.

Good luck!

The aforementioned opinion does not constitute legal advice and is for general educational purposes only. See an attorney licensed in your jurisdiction for competent legal advice. No attorney-client relationship has been formed through the within legal question and answer session.

Retain an attorney qualified in personal injury litigation. Ask those you trust and respect for recommendations; local has advantageous. Someone has given you potentially inaccurate advise, or there're was a lack of communication.

Personal injury cases only; I'm good at it; you be the Judge! All information provided is for informational and educational purposes only. No attorney client relationship has been formed or should be inferred. Please speak with a local and qualified attorney. I truly wish you and those close to you all the best. Jeff
www.nyelderinjurylaw.com

You are not limited to insurance. Of course it is unknown what other assets might be available. You should certainly look to see if your auto policy has under insurance coverage. Best of luck and god bless.

Ryan Finn
Rfinn@hackermurphy.com
Serving clients throughout New York State

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If you have a large supplementary uninsured motorist coverage (e.g. $500,000), then once the defendant's policy is depleted, you can collect up to an additional $400,000 from your own insurance company. Review your policy.

If you found this "helpful" or "best answer," please click it with my appreciation.
My response is for educational purposes and does not constitute legal advice nor creates an attorney client relationship which requires all the details and a personal conference.

The car that you are suing is only sued for th $100,000. That means that the insurance company will only be responsible for that amount if you injuries warrant same. You should check your own insurance policy to determine if you have supplemental motorist insurance. That being if you have more in insurance than the offending vehicle you may be able to collect under your own policy, the difference between that policy and your own.
It would be difficult to obtain more thant the policy limits unless the offending vehicle had obtainable assets that you could go against. You should contact your attorney and discuss this matter further.

I I am sorry to hear about the car crash and your injuries.
You have suffered a significant injury and deserve significant compensation. Yet, you have a challenging case. Since the defendant driver died, you must first establish the ability to sue the estate.
In your case, you say that the defendant driver had a $100,000 policy. You should determine if there is any other insurance available. You should also determine if the driver’s estate has the ability to pay beyond the insurance limits. If you win a court award of more than the policy limits, you have the right to seek a judgment against the estate. In New York, you can place a judgment against any real estate equity in excess of $175,000. You can also seek to collect against any liquid assets.

You may face a choice. You can seek to obtain an early settlement for the full or near the full policy or you can proceed to court and attempt to win an award larger than $100,000. Assuming that you won a court award greater than $100,000, you then would need to seek a judgment against the defendant and then try to collect on that judgment.

If you do not already have an attorney, you should consult an attorney who can gather the necessary facts about the available insurance and the ability of the estate to pay beyond the insurance limits. You then will need to make a choice about whether you prefer to settle for the policy amounts or wait for what can be two to three years to go to trial with all the risk that carries and seek money beyond the policy limits. If there is no money to pay beyond the policy limits, it may not be worth going to trial. That is a very personal choice. Your attorney can guide you, but the decision to settle or proceed to trial always rests with you.

The Schlitt Law Firm and Carol L. Schlitt provide answers for informational purposes only. If this answer is helpful, please mark the “helpful” button. If this is the best answer, then please indicate it. Thank you. We are a plaintiffs-only, personal injury and medical malpractice law firm representing clients in the New York metropolitan area. We offer personal services built on the values of communication, education and responsiveness. Please understand that legal advice can only be given by an attorney licensed in your jurisdiction who has a familiarity with the law concerning your question. This answer does not constitute an attorney-client relationship. If you are in the New York metropolitan area, feel free to call us at 1-800-660-1466 or contact our website www.SchlittLaw.com and I will see if we can help you.